Legal scholarship: To print or not to print?

February 27, 2009Duke Law News

Feb. 27, 2009 — This week, a group of directors at 12 of the country’s top university law libraries publicly released a proposal for law schools to stop publishing law journals in print form. Conceived when the group met at Duke last November for the dedication of the J. Michael Goodson Law Library, the “Durham Statement on Open Access to Legal Scholarship” calls for law schools to rely on electronic publication in stable, open, digital formats.

“It’s something that we feel should be discussed, recognizing that each law school will decide how to proceed with it,” said Richard A. Danner, Senior Associate Dean for Information Services and Rufty Research Professor of Law. “The proposal is primarily aspirational at this point.” Among the motivating factors for the library directors’ statement, he said, were the strain the current economic downturn has put on law schools and law libraries, the cost to law schools of printing journals, and changing research norms. Also relevant, said Danner, is scholars’ interest in making — and their obligation to make — their scholarship widely available, an issue he explored in his article Applying the Access Principle in Law: The Responsibilities of the Legal Scholar.

Danner discussed the Durham Statement on Open Access to Legal Scholarship with Duke Law Magazine.

Duke Law Magazine: What was the genesis of the Durham Statement?

Danner: There are a number of things that have come together. First there is the growing importance of publishing law journals electronically, which is something we’ve done at Duke on our web site for more than 10 years. Duke has been the leader in electronic publishing, but we’ve continued to publish the journals in print as well.

Then there’s the idea of open access. When you publish your scholarship electronically and also make it freely available on the Internet, it is potentially available to people who won’t otherwise have access to it. Open access has the big advantages of taking your work internationally, taking it to scholars in disciplines outside law who wouldn’t see it otherwise, and creating new audiences or markets for it. It’s searchable on Google. Perhaps most importantly, open access makes scholarship more readily available to scholars in underdeveloped countries who can’t afford to buy print journals or the commercial databases through which they are available electronically. Scholars world-wide gain both access to new research and scholarship and the ability to participate in the discourse by posting their own works.

Many open access advocates believe that all scholars have an obligation to make their work as freely and as widely available as possible. Since the Internet makes it easy and inexpensive to post their works, scholars who are creating knowledge for benefit of the world should do all they can to make their work freely available.

What brings these questions to a head right now for law schools is the financial situation in higher education. Like all libraries, law libraries in particular have been for many years under pressure from administrators to cut costs. Libraries are expensive and are natural places where deans look for cost savings: “Since all of this stuff is available electronically, why do we need to spend so much money on the library now, when money is extremely tight?” Those are reasonable questions.

However, what should law libraries cancel? What do you stop getting and what do you stop doing? One thing we have control over in law is our scholarly literature. The journals in most other fields are published by commercial publishers, but in law most of our scholarly literature is published by us — by the law schools in law journals. By most counts, there are now over 570 student-edited journals published at U.S. law schools.

Law journals are published relatively cheaply, and cost comparatively little for libraries to purchase, but most law schools lose money publishing them because the market is so small — for many law journals, it is almost exclusively other law libraries at other law schools. So most law schools are losing money publishing journals in print and additionally, their law libraries are spending money buying those journals, processing them, binding them, and preserving them. It’s one area in which law schools have some ability to control costs and save some money on both the publishing and library ends of the process.

If law schools are in increasingly difficult times financially and if there’s some way we can control expenditures for this, how can we not consider reducing our reliance on print journals?

DLM: What are the implications of this proposal for law faculty?

Danner: It is important for law faculty to publish their work in the best journals they can for tenure and promotion, and to be recognized for their work. But, in reality their articles in most instances are probably not being read in the traditional print journal package, but rather in an electronic format on a screen, or in a printout from that version. New papers in law are posted on services like the Social Sciences Research Network (SSRN), often well before they appear in print, and are available in Lexis, Westlaw or some other commercial database, or for free on a web site as we do at Duke. Often, by the time it shows up in a print journal, the article it has already been read by those most interested in it.

All of these things, together, combine for at least some consideration of the question, “Why do we want to keep maintaining the print versions?” This is something that we feel ought to be talked about in each school, and decisions made about how to proceed.

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